Round 2: Gay couples sue N.C. over law allowing officials to opt out of performing same-sex weddings

by Gregory Tomlin |

(REUTERS/Davis Turner)Allyson Creel (center left) and Jennifer Kolb (center right) talk to the media after getting married outside of the Mecklenburg County Register of Deeds office in Charlotte, North Carolina, October 13, 2014. That day was the first day that Mecklenburg County issued marriage licenses to gay couples following a ruling by a federal judge that the state's constitutional amendment banning gay marriage was, according to the judge, unconstitutional. By the next June, legislators passed a bill allowing public officials to opt out of performing such marriages on religious grounds. They also overrode Gov. Pat McCrory's veto of the bill. Now, the state is being sued by three gay couples over the opt out law.

ASHEVILLE, N.C. (Christian Examiner) – Three gay couples are suing the state of North Carolina in federal court to overturn a law that allows public officials in the state to recuse themselves from performing same-sex weddings if they object to the practice on religious grounds.

Under the provisions of the law, Senate Bill 2, government officials may not be terminated for recusing themselves from performing or licensing a same-sex marriage. However, should they refuse to perform the services, they are barred from performing any marriage – even traditional marriage between a man and a woman – for a period of six months. They are also expected to find another official willing to perform the ceremony.

The controversial bill was originally vetoed by Gov. Pat McCrory, a conservative Republican, in June. McCrory argued that the courts had already ruled on the legality of same-sex marriage and the state was required to follow the law. Same-sex marriage became legal in North Carolina in 2014 when a U.S. District Court judge ruled in General Synod of the United Church of Christ v. Resinger and Cooper that the state's 2012 constitutional amendment prohibiting gay marriage was unconstitutional.

Legislators, however, overrode that veto and set the law in place in the same month the U.S. Supreme Court ruled in Obergefell v. Hodges that gay marriage was legal nationwide.

Every North Carolinian seeking a gay marriage license since Senate Bill 2 became law has received one, and this is just the latest attempt by the far left's political correctness mob to force their beliefs on everyone else by trampling the First Amendment guarantee of religious freedom.
- N.C. State Sen. Phil Berger

Now, the six plaintiffs in the case allege the law is not only discriminatory, but also a violation of the First Amendment because it allows public officials to use religion as a buffer between them and their constitutional obligations.

Luke Largess, a partner with Charlotte-based lawyers Tin, Fulton, Walker & Owen, the firm that represented proponents of gay marriage in the Cooper and Resinger case in 2014, said the law allows public money to be used (through the payment of salaries) to "advance those religious beliefs."

"That is a straightforward violation of the First Amendment," Largess told Reuters.

In the lawsuit filed in U.S. District Court in Asheville, attorneys for the gay couples – in spite of the fact they have been able to marry – said the governor warned the legislature that overriding his veto would create a "constitutional problem" the courts would be required to solve. The suit alleges more than 30 public officials have already chosen to opt out of performing a same-sex marriage.

Among those were all of the public officials in McDowell County, N.C., halfway between Asheville and Hickory. The suit alleges that "by opting out of performing marriages, these magistrates in McDowell County and across North Carolina renounced the oath to uphold the United States Constitution, as they rejected and refused to defend, support, uphold and be bound by the Fourteenth Amendment rights of same sex couples to marry."

According to Reuters, Attorney General Roy Cooper, a Democrat, said his office is obligated to defend the state's current law even though he personally opposes it. Cooper has announced plans to run for governor next year.

State Sen. Phil Berger [R-Rockingham] dismissed the lawsuit as an attempt by leftists to overturn constitutional protections on religion. In a post on his website, Berger said the law has caused no constitutional crisis:

"Every North Carolinian seeking a gay marriage license since Senate Bill 2 became law has received one, and this is just the latest attempt by the far left's political correctness mob to force their beliefs on everyone else by trampling the First Amendment guarantee of religious freedom."

Utah is the only other state with a similar opt-out law.